Citation Nr: 1332198 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 05-16 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to January 1984. With additional service in the Army Reserve from November 1984 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that denied service connection for bilateral hearing loss and tinnitus. In March 2009, the Veteran testified at a hearing before the undersigned. The Board remanded these claims for additional development in May 2009, May 2010, and August 2012. The Board also sought supplemental additional development without remanding in April 2013. This decision is based on review of the Veteran's claims file and Virtual VA electronic claims file. A claim for service connection for a left knee disability was raised at the March 2009 hearing. It does not appear that the agency of original jurisdiction (AOJ) has adjudicated that claim. That claim is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran incurred left ear hearing loss as a result of noise exposure during service, and right ear hearing loss was noted on entrance to service or was clearly and unmistakably shown at entrance examination and was aggravated during service. 2. The Veteran incurred tinnitus as a result of noise exposure during service, and it is secondary to his hearing loss, incurred and aggravated as a result of noise exposure during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 101, 1110, 1111, 1131, 1153, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.306, 3.385 (2012). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 101, 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection means that an injury or disease resulting in disability was incurred in active service, or if preexisting active service, was aggravated in active service. 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (West 2002). Active service includes active duty service, any period of active duty training (ACDUTRA) service during which there was an injury or disease in the line of duty, and any period of inactive duty training (INACDUTRA) service during which there was an injury in the line of duty. 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012). To establish service connection, there generally must be (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection also is established for any disease that is diagnosed after discharge when the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d) (2012). Sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, are chronic diseases. 38 U.S.C.A. § 1101(3) (West 2002); 38 C.F.R. § 3.309(a) (2012). For chronic diseases, service connection additionally may be established through chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Subsequent manifestations of the same chronic disease shown during service at any later date may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology after service is required if the disease is noted during service but is not chronic or where the determination that it is chronic is questionable. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488 (1997). Service connection is presumed for chronic diseases when service was for 90 days or more during a period of war or after December 31, 1946, and the disease manifested to a compensable degree within one year from the date of discharge. 38 U.S.C.A. § 1112(a) (West 2002); 38 C.F.R. §§ 3.307(a), (c) (2012). Evidence rebutting the in-service origin of the disease must be taken into consideration. 38 U.S.C.A. §§ 1113, 1153 (West 2002); 38 C.F.R. §§ 3.307(d), 3.309(a) (2012). Secondary service connection means that a current nonservice-connected disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). To establish service connection on a secondary basis, there must be a current disability proximately caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). With respect to aggravation, the baseline level of disability pre-aggravation must be compared to the current level of disability. 38 C.F.R. § 3.310(b) (2012). Compensation is paid only for the degree of disability over and above the baseline plus natural progression. 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Board must identify the evidence it finds to be persuasive or unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). That includes both medical evidence and lay evidence. When there is an approximate balance of positive and negative evidence, any reasonable doubt is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claimant prevails when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Only the most salient and relevant evidence must be discussed, although all the evidence must be reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Veteran has currently diagnosed bilateral hearing loss and tinnitus. A current disability exists when one is present at the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed his claim in 2004. Private treatment records dated prior to 2004 contain diagnoses of bilateral sensorineural hearing loss and tinnitus. Bilateral hearing loss and tinnitus were diagnosed at VA examinations in November 2009, October 2010, and August 2012. Pure tone threshold and speech recognition tests from those examinations show that the Veteran's hearing impairment arises to the level of a disability. 38 C.F.R. § 3.385 (2012). No tests for tinnitus exist, and thus this disability was diagnosed based on his reports. He is a lay person since there is no indication that he has a medical background. A lay person is competent to diagnose a disability if competent to identify it. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Tinnitus is identifiable to a lay person. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran's reports are competent because he experiences it personally. Layno v. Brown, 6 Vet. App. 465 (1994). His reports are credible. Competent lay evidence may be discounted due to many factors such as interest, implausibility, and inconsistency. Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997). Those factors are not shown here. With respect to an injury during service, the Veteran contends that he was exposed to loud noise during service. His service separation form indicates that he was a wire systems installer/operator on active duty in the Army. Service personnel records show that he was a drill sergeant and senior drill sergeant, which included training soldiers in marksmanship, while he served on various periods of ACDUTRA and INACDUTRA in the Army Reserve. Due consideration shall be given to the circumstances of service. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.304(d) (2012). The Veteran's duties, particularly using equipment to install wire systems and providing instruction on the firing range, undoubtedly placed him in an environment that was noisy regardless of whether ear protection was worn. Therefore, exposure to loud noise during service is conceded. Regarding a disease during service, the service medical records are silent with respect to tinnitus. Those records show that the Veteran was given a rating of 1 for hearing on his PULHES profile, indicating a high level of fitness, at his January 1980 active duty service entrance examination. Odiorne v. Principi, 3 Vet. App. 456 (1992). No hearing impairment was referenced. Yet the pure tone thresholds at 2000, 3000, and 4000 Hertz of 25, 35, and 25 decibels were above the normal range of 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). The pure tone threshold for the left ear at 4000 Hertz was 25 decibels. It is presumed that a Veteran was in sound condition when examined for entrance into service except as to defects noted at that time. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Noted means only such defects as are recorded in an examination report. 38 C.F.R. § 3.304(b) (2012). Despite the PULHES profile and lack of reference to hearing impairment, impaired hearing was noted at entrance to service in the pure tone thresholds. A Veteran's Health Administration (VHA) expert nevertheless opined in May 2013, in response to several questions posed by the Board in April 2013, that the thresholds signified essentially normal hearing in the left ear. It further was opined that they signified mild high frequency hearing loss in the right ear. The relevant inquiry for tinnitus is whether or not the Veteran incurred his current tinnitus it as a result of loud noise exposure during his active duty, ACDUTRA, or INACDUTRA service. For bilateral hearing loss, the presumption of sound condition does not apply. The relevant inquiry for left ear hearing loss is the same as for tinnitus, whether left ear hearing loss is the result of noise exposure in service. The relevant inquiry for right ear hearing loss is whether the current right ear hearing loss represents aggravation of preexisting right ear hearing loss during service. A preexisting disease is presumed to have been aggravated by service when it increases during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). An increase means a lasting worsening. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Routen v. Brown, 10 Vet. App. 183 (1997); Hunt v. Derwinski, 1 Vet. App. 292 (1991). VA bears the burden of establishing that there was no increase or that it was due to the natural progression of the disability. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012); Horn v. Shinseki, 25 Vet. App. 231 (2012); Laposky v. Brown, 4 Vet. App. 331 (1993). The Veteran reports that his current tinnitus and left ear hearing loss are due to his in-service loud noise exposure. He also reports that his current right ear hearing loss represents aggravation of his preexisting right ear hearing due to in-service loud noise exposure. Lay evidence can sometimes be sufficient to prove nexus. Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the question of nexus in this case falls outside the province of a lay person. It is a medical question because of the complexities involved. There are numerous types and etiologies of hearing loss, and various etiologies for tinnitus. The Veteran has reported some loud noise exposure with ear protection in his civilian occupation in addition to loud noise during service. Only those with medical expertise are competent to provide a diagnosis and opine regarding etiology where the determinative issue is one of medical complexity. Jones v. West, 12 Vet. App. 460 (1999). Therefore, the Veteran's reports are not competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). During the pendency of the Veteran's claim, several medical professionals have opined as to nexus. Private otolaryngologist Dr. J.B. opined in an April 2009 letter that the Veteran's current bilateral hearing loss and tinnitus more likely than not resulted from his exposure to loud noise during service. The audiologists who performed the November 2009 and October 2010 VA medical examinations determined that to opine on whether or not his current bilateral hearing loss or tinnitus is related to his service would require resort to mere speculation due to lack of sufficient information. The November 2009 audiologist further opined that the Veteran's current tinnitus was not as likely as not a symptom of his current bilateral hearing loss, while the October 2010 audiologist determined that an opinion would require resort to mere speculation. The audiologist who conducted the August 2012 VA medical examination opined that the Veteran's current bilateral hearing loss was not at least as likely as not related to service, to include being aggravated during service. Reliance was placed on the September 1985 examination, which showed normal hearing in the left ear as well as the right ear. It was determined that an opinion on whether or not the Veteran's current tinnitus was related to his service or a symptom of his current bilateral hearing loss would require resort to mere speculation due to lack of sufficient information. The VHA expert, a doctor of audiology, finally opined that it is at least as likely as not that the Veteran's current left ear hearing loss and tinnitus were incurred while his right ear hearing loss was aggravated as a result of his loud noise exposure during active duty, ACDUTRA, and INACDUTRA service. It additionally was opined that the Veteran's current tinnitus is at least as likely as not a symptom of his current bilateral hearing loss. That an active duty separation examination complete with pure tone thresholds was not among the available service medical records was noted, though the last pure tone thresholds during active duty service taken in April 1982 were highlighted. An available September 1985 examination, the only examination showing normal hearing in the right ear at the 2000, 3000, and 4000 Hertz pure tone thresholds, was characterized as suspect and unreliable. The private treatment records, which primarily are dated in October 2003 shortly after the Veteran's separation from ACDUTRA and INACDUTRA service, were noted to document moderate right ear hearing loss and mild left ear hearing loss. Natural progression as a cause of that increase from his previous mild right ear hearing loss and normal left ear hearing was rejected. The conflicting reports of the Veteran about when he started experiencing tinnitus as during active duty service and during ACDUTRA and INACDUTRA service were explained away by highlighting that most people are unable to recall onset. Mention was made of a correlation to his hearing loss. As with lay evidence, a medical opinion may be discounted due to many factors such as the qualifications and expertise of the examiner, access to pertinent evidence, the rationale offered for it, and the degree of certainty provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Ardison v. Brown, 6 Vet. App. 405 (1994); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). All of the medical opinions here were rendered by those with adequate qualifications and expertise. However, Dr. J.B.'s opinion was not based on a review of any pertinent evidence other than his own treatment records. The November 2009 and October 2010 examiners reviewed the claims file, but it did not contain all pertinent service medical records at those times. Although the August 2012 examiner reviewed the claims file when it contained all pertinent evidence, the focus for bilateral hearing loss was on only the evidence dated during active duty service, with no consideration of the evidence dated during ACDUTRA and INACDUTRA service. Little to no rationale was provided for the opinions of Dr. J.B., the November 2009 examiner, the October 2010 examiner, and the August 2012 examiner. Of import is that the conclusion that a nexus opinion is not possible without resort to speculation must be supported by a rationale because it is a medical conclusion just as much as a positive or negative opinion. Jones v. Shinseki, 23 Vet. App. 382 (2010). The VHA expert's opinion considered all of the pertinent evidence, including the previous opinions, and was supported by a rationale. Two key points are readily inferred from this rationale. First, the Veteran's loud noise exposure in his civilian occupation was deemed less significant than his loud noise exposure during active duty, ACDUTRA, and INACDUTRA service. That corresponds to the Veteran's reports which are competent and credible. In-service loud noise exposure is believed to have resulted in the contemporaneous increase in his right ear hearing loss and incurrence of left ear hearing loss and tinnitus notwithstanding the evidentiary gaps in the record. Second, tinnitus was deemed secondary to the Veteran's hearing loss. Language suggestive of aggravation was not used, and therefore the association is one of causation. Ambiguous language was not used by the VHA expert, and hesitancy is otherwise not apparent. In sum, Dr. J.B.'s positive opinion and the negative opinions of the VA examiners are not persuasive. The VHA expert's positive opinion is persuasive and is the most persuasive evidence available. All requirements for establishing service connection for right ear hearing loss and for left ear hearing loss, collectively bilateral hearing loss, and for tinnitus thus have been met. Specifically, service connection for bilateral hearing loss and for tinnitus has been established by a preponderance of the evidence, while service connection for tinnitus as secondary to bilateral hearing loss also has been established by a preponderance of the evidence. Accordingly, the Board finds that service connection for bilateral hearing loss is warranted because left ear hearing loss was incurred in service and right ear hearing loss was aggravated in service. Furthermore, tinnitus is shown to have been incurred in service and service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs